Opinion
03-23-00426-CV
08-29-2023
In re J & GK Properties - CKJ North Texas Series LLC d/b/a CKJ Transport of North Texas
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
Before Justices Baker, Triana, and Smith
MEMORANDUM OPINION
GISELA D. TRIANA, JUSTICE
Relator In re J & GK Properties - CKJ North Texas Series LLC d/b/a CKJ Transport of North Texas (CKJ Transport) has filed a petition for writ of mandamus challenging the trial court's order on real party in interest Jimmie Mathews's motion to compel. CKJ Transport challenges the portions of the order requiring it to produce all company records of prior vehicular accidents for 10 years and all company records of any regulatory-agency actions for nearly 8 years, asserting that the trial court abused its discretion by requiring it to respond to overly broad discovery requests. We hold that it did. Accordingly, we conditionally grant mandamus relief and order the trial court to withdraw its order compelling this discovery.
In addition, while this mandamus petition was pending, Mathews filed a stipulation in this Court and the trial court, voluntarily narrowing the scope of the documents requested. In his mandamus response, he requested that we evaluate CKJ Transport's mandamus petition in light of the stipulation and deny the petition, or in the alternative, that we conditionally grant the petition and instruct the trial court to amend its order to conform to the stipulation, or in the further alternative, that we stay the mandamus proceeding pending the trial court's ruling on the amended requests. He subsequently filed a motion to modify the trial court's discovery order and set it for hearing. Mathews acknowledges that the stipulation amending the discovery requests does not render this mandamus proceeding moot, but he asserts that the stipulated modification of the scope of his requests also narrows the scope of our review.
As a general rule, mandamus is not available to compel an action which has not first been demanded and refused. Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991) (orig. proceeding). However, on rare occasions, courts have "relaxed this predicate when the circumstances confirmed that 'the request would have been futile and the refusal little more than a formality.'" In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig. proceeding) (per curiam) (quoting Terrazas, 829 S.W.3d at 723). Under these circumstances, where Mathews has narrowed his discovery requests to seek less information than the trial court has already compelled, and CKJ Transport urges in reply that the discovery requests remain overbroad, seeking an amended discovery order from the trial court to which CKJ Transport would object for the same reasons makes this a situation where CKJ Transport's request would be "futile and the refusal little more than a formality." Id. Accordingly, in the interest of judicial economy, we will analyze both the original requests (because they are the basis for the trial court's order) and the narrowed document requests. We conclude that they both seek overly broad discovery, and the principles that we discuss in this opinion should guide the trial court in taking further action on the narrowed document requests. See Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 556 (Tex. 1990).
BACKGROUND
The underlying case arises out of a rear-end collision that occurred on November 30, 2020. CKJ Transport's employee, Manuel Talamantez, was driving a CKJ Transport tractor-trailer that struck Mathews's vehicle from behind. CKJ Transport has stipulated on the record that Talamantez was its employee acting in the course and scope of his employment at the time of the accident.
Mathews sued both Talamantez and CKJ Transport. Against CKJ Transport, Mathews alleged claims for negligent hiring ("recruiting and selecting its employees"), training, supervision ("monitoring and supervising the conduct of [its] employees"), and retention ("discipline, re-training and/or termination of incompetent, careless or reckless employees"); respondeat superior for the alleged negligence of Talamantez; and gross negligence.
Mathews propounded 18 interrogatories and 88 requests for production to CKJ Transport. The following two requests for production are the original requests that are the basis for this mandamus proceeding:
68. All documents regarding any regulatory agency, including OSHA, USDOT, TXDOT, and TNRCC, inspections, investigations, citations, warnings or other reports regarding [CKJ Transport's] facilities or vehicles from November 30, 2020[,] through the present.
85. Any and all documents which relate[] to, pertain to, identify and/or involve prior vehicular Crash involving employees of [CKJ Transport] operating company vehicles in the last 10 years.
We refer to the first of these requests as the "DOT RFP" and the second as the "Prior Accident RFP."
CKJ Transport responded to Mathews's written discovery with objections, substantive responses, and document production, and it has supplemented its responses twice. CKJ Transport's original and supplemental responses to requests for production all object to the DOT RFP and Prior Accident RFP as follows:
RESPONSE: Defendant objects to Request No. 68 on the basis that it is overly broad, irrelevant, unduly burdensome, and not reasonably limited as to time and scope. Defendant further objects to this Request as harassing and constituting an overbroad "fishing expedition" to which objection is made.
. . . .
RESPONSE: Defendant objects to Request No. 85 on the basis that it is overly broad, unduly burdensome, irrelevant, and not reasonably limited as to time and scope. Defendant further objects to this Request as harassing and constituting an overbroad "fishing expedition" to which objection is made.
(Boldface font omitted.) Mathews filed a motion to compel discovery responses from CKJ Transport, including responses to the DOT RFP and the Prior Accident RFP.
The trial court conducted a hearing on the motion to compel on June 8, 2023. CKJ Transport's original objections to the RFPs were attached to Mathews's motion and thus before the trial court at the hearing. No testimony was adduced at the hearing, and no reporter's record was made. On June 30, 2023, the trial court signed its order on the motion to compel. The order requires CKJ Transport, within 30 days of the order, to (1) remove its objections to both the DOT RFP and the Prior Accident RFP, (2) produce all responsive documents to the Prior Accident RFP, and (3) produce all responsive documents to the DOT RFP relating specifically to USDOT and TXDOT, as well as documents for an additional five years before the accident-a time period that had not been included in Mathews's original request.
Although CKJ Transport's supplemental responses were not before the trial court at the time of hearing on Mathews's motion to compel, they did not make any changes to CKJ Transport's original objections to the DOT RFP and the Prior Accident RFP. In CKJ Transport's second supplemental responses, CKJ Transport clarified that it did not possess any documents responsive to the DOT RFP for the requested time period of November 30, 2020, to present, but it made its clarification subject to its previously asserted objections. CKJ Transport served its second supplemental responses before the trial court's ruling (explained below) that enlarged the requested time period.
This original proceeding followed. We stayed the trial court's order while we requested a response to the mandamus petition and motion to stay.
Mathews did not oppose the motion to stay the trial court's order. In his mandamus response, he informed the Court that contemporaneously with his response, he was filing a stipulation in our Court and the trial court, binding himself to limiting the scope of the requests "to encompass only accidents that (a) involved rear-end collisions or cell-phone use[,] (b) occurred during the five-year period of time preceding the accident at issue, and (c) occurred in the State of Texas":
Request No. 68: All documents regarding any USDOT or TXDOT inspections, investigations, citations, warnings or other reports regarding Defendant's facilities or vehicles in the State of Texas for the five years preceding the accident at issue in this lawsuit (Nov. 30, 2015 through Nov. 30, 2020) if such reports concern accidents involving rear-end collision or cellular phone use allegations.
Request No. 85: Any and all documents which relate to, pertain to, identify and/or involve prior vehicular Crashes involving rear-end collision or allegation of cellular phone use that occurred in the State of Texas involving employees of Defendant operating company vehicles during the five years preceding the accident at issue in this lawsuit (Nov. 30, 2015 through Nov. 30, 2020).As explained above, we will consider both the original requests and the amended requests when analyzing whether they are overbroad.
STANDARD OF REVIEW
The scope of discovery is generally within the trial court's discretion. See In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding) (per curiam). However, "[a] discovery order that compels production well outside the bounds of proper discovery is an abuse of discretion for which mandamus is the proper remedy." In re Contract Freighters, Inc., 646 S.W.3d 810, 814 (Tex. 2022) (orig. proceeding) (per curiam). Although the scope of discovery is broad, see Tex. R. Civ. P. 192.3(a), requests must show a reasonable expectation of obtaining information that will aid the dispute's resolution. See In re CSX Corp., 124 S.W.3d at 152. Thus, discovery requests must be reasonably tailored to include only matters relevant to the case. Id. (citing In re American Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (orig. proceeding) (per curiam)); see also In re Contract Freighters, 646 S.W.3d at 814 (concluding requests were "not reasonably tailored to the [real parties in interest's] claims or the factual circumstances of the accident at issue in this case").
ANALYSIS
CKJ Transport asserts that the Texas Supreme Court's opinion in In re Contract Freighters, Inc. mandates a decision that the trial court abused its discretion in this case when it ordered CKJ Transport to produce 10 years of all documents related to vehicle accidents involving the company and 7-½ years of all documents related to company-wide state and federal Department of Transportation actions and to remove its objections to these two requests over CKJ Transport's objections that the requests were overly broad and improper fishing expeditions. See generally 646 S.W.3d 810. In addition, on reply, it maintains that even as modified, the discovery requests remain overbroad and an impermissible fishing expedition. We agree.
CKJ Transport argues that the requests here are not as narrowly tailored as possible to the matters at issue in the case, and like the discovery requests in In re Contract Freighters, "are overbroad in time and scope and unlikely to lead to the discovery of useful information." Id. at 814. The discovery requests approved by the trial court seek many years of all documents related to company-wide accident information and company-wide DOT actions in a case in which Mathews alleges that Talamantez rear-ended him and that the Austin Police Department "determined Talamantez's inattention was [the] contributing cause of collision." And even as limited by Mathews's stipulation, the discovery requests seek information that is broader in scope than that which the Texas Supreme Court determined was overbroad in In re Contract Freighters.
Mathews supplemented the mandamus record with dash-cam video of the interior of Talamantez's truck, which he asserts CKJ Transport presented to the trial court as a demonstrative exhibit at the hearing on the motion to compel. Mathews contends in his response that the video shows that the driver was using a "hand-held cell phone" at the time of the accident. The video shows the driver briefly looking down and away from the road and reaching toward something immediately before the accident, but it is not apparent from the video what he was looking at or reaching toward. CKJ Transport disputes that the video shows Talamantez holding a cell phone, but it does not object to Mathews's stipulated limitation on accidents involving cell-phone use by asserting that cell-phone use was not a factor in this accident. For the purpose of this opinion, we will assume without deciding that the object Talamantez looked at and was reaching toward was a cell phone.
Like this case, In re Contract Freighters arose out of a rear-end collision involving a tractor-trailer driven by a Contract Freighters, Inc. (CFI) employee. See id. at 812. The plaintiffs in that case, the McPhersons, had sued CFI and the driver for negligence, negligence per se, and gross negligence. Id. Like Mathews here, the McPhersons alleged that CFI was liable for its driver's actions as his employer and because it negligently hired, entrusted, trained, supervised, and retained him. See id. They also made other allegations, not made by Mathews here, that CFI negligently established, implemented, and enforced safety policies and procedures and that it negligently provided unsafe equipment. See id.
The two discovery requests originally at issue in In re Contract Freighters were (1) an interrogatory seeking a list for the previous ten years of each lawsuit arising out of a motor-vehicle collision involving CFI as a defendant, and providing the jurisdiction, case style, date of collision, and date of filing of the lawsuit; and (2) a third-party deposition of USDOT seeking documents concerning CFI in general for a ten-year period. Id. After hearings on the discovery dispute, the trial court limited the requests, allowing the McPhersons to seek (1) a list from CFI of lawsuits arising from "rear end collisions occurring 5 years previous to the collision that forms the basis of this suit" and (2) documents from USDOT concerning rear-end collisions involving CFI for a five-year period. Id. at 812-13. The Texas Supreme Court concluded that these requests, which required CFI and USDOT to provide records for every rear-end accident involving CFI nationwide for a five-year period, were "not reasonably tailored to the McPhersons' claims or the factual circumstances of the accident at issue in this case." Id. at 814.
The court explained that "[t]he discovery requests at issue here are of a piece with those that this Court has repeatedly rejected as impermissible fishing expeditions." Id. Relying on its holdings in some of those prior cases, the court held that "[t]he requests in this vehicle-collision lawsuit for a list of unrelated lawsuits in which CFI was previously involved and for USDOT records from all fifty states over a five-year period are also overly broad as a matter of law." Id. at 815 (citing e.g., Dillard Dep't Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995) (holding that "a twenty-state search for documents over a five-year period is overly broad as a matter of law")). Comparing the McPhersons' requests to the overly broad requests in In re National Lloyds Ins. Co., 449 S.W.3d 486, 489 (Tex. 2014) (orig. proceeding) (per curiam), the court further explained, "Scouring a list of lawsuits and USDOT records from all over the country here, with the hope of finding similarly situated accidents, is likewise an impermissible fishing expedition." In re Contract Freighters, 646 S.W.3d at 815.
The court concluded that the McPhersons-whose claims against CFI were more extensive than the claims Mathews alleges here-had not shown "how a nationwide search over a five-year period reasonably advances their claims against CFI." Id. Moreover, the court described their "requests, without appropriate limits as to 'time, place or subject matter,' [as] 'not merely an impermissible fishing expedition; [they are] an effort to dredge the lake in hopes of finding a fish.'" Id. (quoting Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995) (per curiam) (orig. proceeding)).
Similarly here, Mathews has not shown how his requests-either as approved by the trial court or voluntarily limited-advance his claims. In his motion to compel, he argues only that the requests sought information relevant to his gross-negligence claim to show a history of how CKJ Transport had conducted itself as a business entity and whether it has a history of neglecting to follow the transportation code. In his mandamus response, he briefly contends that the requests also seek information relevant to his negligent hiring and supervision claims, "including notice to defendant, the unreasonableness of defendant's policies, and the foreseeability of the dangers of such inadequate policies." In an effort to demonstrate that his requests are now reasonably tailored to lead to the discovery of relevant evidence, Mathews primarily focuses on how his stipulated requests are now more limited in terms of geography, time, and nature of the accidents.
Mathews urges that because his stipulated requests are now limited to seeking information about accidents that (1) occurred in the State of Texas, (2) happened within the five-year period preceding the accident, and (3) involved rear-end collision or cell-phone use, they are not overbroad. Mathews "is correct that discovery must be reasonably limited in time and geographic scope, [b]ut such limits in and of themselves do not render the underlying information discoverable." In re National Lloyds Ins. Co., 449 S.W.3d at 489-90 (citations omitted). Because, as we explain below, the information Mathews seeks "is not narrowly tailored to avoid including tenuous information and still obtain the necessary, pertinent information," both the original requests and the stipulated requests are necessarily overbroad. In re CSX Corp., 124 S.W.3d at 153.
As an initial matter, the trial court's order compelling responses to the original requests constitutes an abuse of discretion. Compared to the discovery requests found to be overbroad in In re Contract Freighters, a case involving the same type of accident and almost identical negligence and gross-negligence allegations, Mathews's original requests sought a much broader scope of information for longer time periods than the requests the Texas Supreme Court rejected.
The original DOT RFP seeks information from CKJ Transport for 7-1/2 years (from 5 years before the accident to the present) and is not limited by subject matter, instead seeking all documents concerning USDOT and TXDOT "inspections, investigations, citations, warnings or other reports regarding [CKJ Transport's] facilities or vehicles." In contrast, the McPhersons sought documents only from USDOT for a five-year period concerning rear-end collisions involving CFI. In re Contract Freighters, 646 S.W.3d at 812.
CKJ Transport asserts as its second issue that the trial court abused its discretion by granting more relief than Mathews had sought by changing in its order the date of the production requested in Mathews's original DOT RFP from the date of the accident, November 30, 2020, to November 30, 2015. This change effectively enlarged the time period for production of DOT investigations and reports by five years. Mathews contends that he informed the trial court at the hearing on his motion to compel that his intent had been to make the time frame for the request the five-year period preceding the accident, and the use of the year of the accident (2020) was a typographical error. He represents that the trial court stated it would correct his error in its order. Because we conclude that the trial court abused its discretion by granting the motion to compel on the DOT RFP, we need not reach CKJ Transport's second issue. See Tex. R. App. P. 47.1.
The original Prior Accident RFP likewise seeks a broader scope of documents than the similarly overbroad request in In re Contract Freighters-all documents related to accidents involving CKJ Transport employees driving CKJ Transport vehicles for a ten-year period. The collision-history interrogatory, on the other hand, sought only a list of all lawsuits in the prior five-year period involving rear-end collisions with CFI as a defendant, including the case styles, dates of accidents and suits, and jurisdictions. Id.
Given the similarity in the accidents and claims in the two suits, and the even broader scope of the discovery requested in this case, we conclude that the trial court abused its discretion by granting the motion to compel the original DOT RFP and Prior Accident RFP.
Furthermore, even as amended, the stipulated requests remain overbroad. In In re Contract Freighters, the requests sought a mere list of lawsuits involving rear-end collisions with the company as a defendant and all documents in USDOT's possession related to rear-end collisions involving the company. Here, Mathews seeks (1) all documents that "relate to, pertain to, identify and/or involve prior vehicular Crashes involving rear-end collision or allegation of cellular phone use" for accidents involving CKJ Transport employees driving company vehicles and (2) all documents in CKJ Transport's possession related to both USDOT and TXDOT "inspections, investigations, citations, warnings or other reports regarding [CKJ Transport's] facilities or vehicles . . . if such reports concern accidents involving rear-end collision or cellular phone use allegations."
Mathews argues that we are compelled by our own prior decision denying mandamus relief in In re UPS, Inc., No. 03-22-00526-CV, 2022 WL 13614008 (Tex. App.-Austin Oct. 21, 2022, orig. proceeding) (mem. op.) ("In re UPS (Austin)"), to deny CKJ Transport's petition for mandamus relief. In that case, the trial court ordered UPS to produce a list of all accident claims and suits relating to any UPS vehicle allegedly failing to yield the right of way at a traffic-control device in Texas for the five years preceding the lawsuit. Id. at *1. We concluded that the trial court did not abuse its discretion by ordering this discovery, which was more limited in geographic scope than the discovery that the Texas Supreme Court found overbroad in In re Contract Freighters, Inc. and more limited in breadth than the discovery found overbroad in In re UPS Ground Freight, Inc., 646 S.W.3d 828, 833 (Tex. 2022) (per curiam) (orig. proceeding) (granting mandamus relief from trial court's order compelling production of five years of information and records pertaining to drug-and-alcohol test results for hundreds of nonparty current and former UPS drivers who were not involved in accident but worked at same facility where culpable driver had worked). In re UPS (Austin), 2022 WL 13614008, at *1. We do not agree that our prior decision that a trial court did not abuse its discretion by compelling discovery that is less broad than the discovery the trial court ordered here (and less broad than that sought by the stipulated requests) and less broad than the discovery found to be overbroad in In re Contract Freighters and In re UPS Ground Freight mandates that we deny mandamus relief here.
Mathews also argues that the only difference between the discovery in In re UPS (Austin) and the discovery here is one of burden and that CKJ Transport has waived any argument about burdensomeness by not raising it in this proceeding. We disagree that the only distinction between the two cases is burden, as explained above. Furthermore, CKJ Transport expressly stated that it is not waiving its objection as to the burden of production on either the Prior Accident RFP or the DOT RFP. Instead, it asserts that because the trial court's order compels overbroad discovery, any argument regarding burden is not yet ripe. See In re Sears, Roebuck and Co., 146 S.W.3d 328, 333 (Tex. App.-Beaumont 2004, orig. proceeding) (per curiam) (explaining that "[u]ntil the requests are narrowly tailored to specific documents related to specific relevant locales, exposures, and products during specific relevant time periods . . . the viability of any objection based on privilege, confidentiality, or burden cannot be determined"). We note that whether a request for discovery is overbroad is distinct from whether it is burdensome or harassing. In re Allstate Cnty. Mut. Ins. Co., 227 S.W.3d 667, 670 (Tex. 2007). "Overbroad requests for irrelevant information are improper whether they are burdensome or not . . . ." Id.
CONCLUSION
Because we hold that the original DOT RFP and the Prior Accident RFP seek overly broad discovery, we conditionally grant CKJ Transport's petition for writ of mandamus and direct the trial court to vacate the portion of its June 30, 2023 order related to these two requests. We are confident that the trial court will comply, and our writ will issue only if it does not.
As we have explained, the amended requests stipulated to by Mathews remain overly broad. We instruct the trial court to consider the principles that we discuss in this opinion when taking further action on the narrowed document requests.